The affidavit required in the application for the delivery of the possession of the corn is signed as follows: "J. M. Spencer, per D. M. Spencer. Sworn before me, this 1 February, 1889. W. D. Saddler, J. P."
In the transcript of the justice of the peace it is stated "the plaintiff appeared by his agent, D. M. Spencer."
There is what purports to be an undertaking of the plaintiff for delivery of property as required by section 324 of the Code, with two sureties, but it is not signed by either the plaintiff or the sureties, but there is a justification, signed by each surety, in which he makes oath that he "is worth over and above his liabilities and his property exempted by law the sum of $ _______." (40)
In the Superior Court, before the trial, defendants moved to dismiss the claim and delivery proceeding upon the following grounds: Because the affidavit purported to have been made by plaintiff J. M. Spencer, "per D. M. Spencer." Second: Because the plaintiff gave no bond before the issuing of the order to seize the property as required by law.
Motion denied, and defendant excepted. The first exception is to the refusal of his Honor to dismiss the claim and delivery proceedings, because the affidavit purported to have been made by the plaintiff J. M. Spencer, per D. M. Spencer.
The Code, sec. 322, provides that the requisite affidavit shall be made "by the plaintiff or some one in his behalf." The essential requisite is, that an affidavit shall be made by the plaintiff or some one in his behalf, that the facts on which the application is based are true, and while the affidavit should have been signed by D. M. Spencer, agent for or on behalf of J. M. Spencer, it sufficiently appears that the affidavit was made for the plaintiff, and the exception cannot be sustained.
The second exception is to the refusal to dismiss because the plaintiff gave no bond.
There was what purported to be an undertaking, with two sureties, and if the defendants excepted to its sufficiency, they should, within *Page 30 three days after the service of a copy of the affidavit and undertaking, having proceeded as required by the Code, sec. 325, or they shall be deemed to have waived all objection to the sufficiency of the sureties. We think the objection, on account of the insufficiency of the bond and surety, came too late, and this exception cannot be sustained.
The next exception is to the refusal of the court to instruct the jury, as requested, that if they believed the testimony of the witness Bell, they will find the value of the property to be $55, and answer the second issue accordingly. Bell was the only witness who testified as to the value of the property, and he said it was worth $55. It is true, the witness Bishop testified that he "got $50 out of the corn," but he said he did not know how much corn there was, and did not testify as to its value, nor does it appear that he got all of the corn. The only evidence (43) as to the value of the property was that of the witness Bell, who said it was worth $55, and the defendants were entitled to the instruction asked, and there was error in refusing it.
The last exception is to the judgment. The court adjudged "that the plaintiff recover of the defendants the sum of $50, the value of the said corn, to be discharged upon the payment by the defendants to the plaintiff the sum of $20.86, with interest thereon," etc. There were no findings of fact upon which such a judgment could be rendered. It is true, the plaintiff claimed a balance of $17.74 on advances to cultivate the crop of 1888, and he also claimed the value of some sacks, and the use of a cart, amounting to $3.22, which, added to the $17.74, would make $20.96; but this was denied by the defendants, and it was not within the province of his Honor to say how the fact was; only a jury could decide and say how the fact was. Besides, the action was to recover the possession of a certain lot of corn alleged to have been worth $45, and upon no state of facts, even if it had been found by the jury that the defendants were indebted to the plaintiff in the sum of $20.86, as assumed by his Honor, would the plaintiff have been entitled to the judgment as rendered. Section 431 of the Code prescribes, clearly and distinctly, the manner in which judgment in an action for the recovery of personal property shall be rendered.Horton v. Horne, 99 N.C. 219; Taylor v. Hodges, 105 N.C. 344, and cases cited.
Error. *Page 31
(44)